Effect of Merger on Capital Stock of Constituent Corporations. At the Effective Time, by virtue of the Merger and without any action on the part of the holders of any class of capital stock of the Constituent Corporations, the following shall occur: (a) Except as set forth in Section 2.06(e), each share of NetGen Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares as defined in Section 2.07(a)) (each an “NetGen Share”) shall be converted into and represent the right to receive (subject to the obligation to deposit the Escrow Consideration pursuant to the provisions of Section 3.01 relating to the establishment of an indemnification escrow): (i) for each Non-Accredited Holder, the Non-Accredited Consideration Per Share, and (ii) for each Accredited Holder, the Accredited Cash Consideration Per Share and the Accredited Stock Consideration Per Share. (b) At least three (3) Business Days prior to the Closing, NetGen will deliver to NetScout a schedule (the “Distribution Schedule”) setting forth for (i) each holder of NetGen Shares that is an Accredited Holder (based solely on the delivery by Accredited Holders of the Accredited Investor Representations Letter), the portion and mix of the Total Consideration payable or issuable, as the case may be, to such holder on or about the Effective Time and the portion of the Escrow Cash and Escrow Shares corresponding to such holder, and (ii) each holder of NetGen Shares that is a Non-Accredited Holder, the portion of the Total Consideration payable to such holder in cash on or about the Effective Time and the portion of the Escrow Cash corresponding to such holder, in each case, in accordance with NetGen’ certificate of incorporation in effect as of the date hereof. The Distribution Schedule will also list all holders of vested, in-the-money NetGen Stock Options and the portion of the Total Consideration payable to each such holder under Section 2.10 and all holders of vested, in-the-money NetGen SARs and the portion of the Total Consideration payable to each such holder under Section 2.10. NetScout shall be entitled to rely exclusively on the Distribution Schedule in making distributions of Merger Consideration pursuant to this Section 2.06. (c) For purposes of this Agreement, each of the following terms shall have the meaning set forth below:
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