SECOND AMENDMENT TO THE SUPPLY AGREEMENT DATED JUNE 30, 2006
EXHIBIT
10.50
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CONFIDENTIAL
TREATMENT REQUESTED
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CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
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SECOND
AMENDMENT
TO
THE SUPPLY AGREEMENT DATED JUNE 30, 2006
This
SECOND AMENDMENT TO THE SUPPLY
AGREEMENT (this “Second
Amendment”) is made and entered into on this 30th day of September, 2009
by and between:
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OCI Company Ltd., f/k/a
DC Chemical Co., Ltd., a corporation organized under the laws of the
Republic of Korea, having its registered office at OCI Building, 50,
Sogong-Dong, Jung-Gu, ▇▇▇▇▇, ▇▇▇-▇▇▇, ▇▇▇▇▇ (hereinafter referred to as
“OCI”);
and
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SunPower Philippines Manufacturing,
Ltd., a company organized under the laws of the Cayman Islands with a
branch office and registered office at #▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Special Export
Processing ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (hereinafter
referred to as “SunPower”).
OCI and
SunPower may be referred to individually as “Party” and collectively as
“Parties.”
WITNESSETH:
WHEREAS, OCI and SunPower are
Parties to a certain Supply Agreement dated June 30, 2006, as amended by
Amendment No. 1 to the Supply Agreement dated September 22, 2006 (collectively,
the “Supply Agreement”);
and
WHEREAS, the Parties have
agreed to make certain changes in the terms and conditions of the Supply
Agreement; and
WHEREAS, the Parties seek to
memorialize the terms of their agreement by this writing.
NOW, THEREFORE, in
consideration of the mutual promises and covenants hereinafter, it is agreed
between the Parties as follows:
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1.
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All
of the capitalized terms not expressly defined in this Second Amendment
shall have the meanings ascribed to such terms in the Supply Agreement, as
such terms may be amended in this Second
Amendment.
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2.
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The
following provisions of the Supply Agreement shall be amended by this
Second Amendment:
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a. The
following definitions contained in Article 1, DEFINITIONS,
shall be amended as follows:
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(i)
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The
following new definitions are hereby added in their correct alphabetical
placement:
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“Advance Payment
Credit” has the meaning ascribed to it in Section
4.1.2.
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(ii)
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“Facility”
means OCI’s plant (Phases I and II) in Goonsan, Korea that manufactures
the Product.
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(iii)
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“Product”
means polycrystalline silicon manufactured by OCI at the Facility and that
conforms to the Specifications.
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b.
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The
following definitions contained in Article 1, DEFINITIONS,
shall be deleted in their entirety:
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(i)
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The
definition for “Annual
Credit Ceiling” is hereby deleted in its
entirety.
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(ii)
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The
definition for “Surplus”
is hereby deleted in its entirety.
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(iii)
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The
definition for “Surplus
Threshold” is hereby deleted in its
entirety.
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(iv)
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The
definition for “Initial
Term” is hereby deleted in its
entirety.
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(v)
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The
definition for “Renewal
Term” is hereby deleted in its
entirety.
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c.
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Section
2.1 is hereby amended by deleting such Section in its entirety and
replacing it with the following:
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2.1
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Facility
Construction. Subject to receipt of the Advance Payment in full by
OCI pursuant to Section 4.1,
OCI shall exert its commercially reasonable efforts to complete the
construction of the Facility.
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The
Parties acknowledge and agree that the Facility has been constructed as of the
date of this Second Amendment.
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d.
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Section
3.1 (Quantity and Price of Product) is hereby amended by deleting such
Section in its entirety and replacing it with the
following:
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3.1
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Quantity and Price of
Product. Subject to Section 4.2,
OCI hereby agree to sell and deliver to SunPower, and SunPower hereby
agrees to purchase and receive from OCI, the Product under the following
terms and conditions:
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Calendar Year
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“Agreed Quantity”
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Price
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From
January to June of 2008
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***kgs
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US$***/kg
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From
July to December of 2008
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***kgs
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US$***/kg
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From
January to August of 2009
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***kgs
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US$***/kg
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From
September to December of 2009
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***kgs
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US$***/kg
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2010
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***kgs
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US$***/kg
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2011
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***kgs
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US$***/kg
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Total
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***kgs
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e.
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Section
3.3 (Surplus
Product) is hereby deleted in its entirety and Section 3.4 (Disposition of Product
Sold) shall be renumbered as Section
3.3.
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f.
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Section
4.1.2 (Deduction) is
hereby amended by deleting such Section in its entirety and replacing it
with the following:
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4.1.2
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Advance Payment
Credit. The Parties agree that the Advance Payment shall
be credited against the Product Deliveries and shall be calculated as
follows (the “Advance
Payment Credit”):
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Calendar
Year
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Agreed
Quantity
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Advance
Payment Credit per kg.
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Aggregate
Advance Payment Credit for the Applicable Period
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From
January to June of 2008
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***kgs
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US$***/kg
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US$***
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From
July to December of 2008
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***kgs
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US$***/kg
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US$***
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From
January to July of 2009
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***kgs
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US$***/kg
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US$***
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August
2009
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***kgs
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US$***/kg
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US$***
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From
September to December of 2009
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***kgs
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US$***/kg
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US$***
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2010
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***kgs
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US$***/kg
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US$***
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2011
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***kgs
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US$***/kg
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US$***
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Total
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***kgs
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US$***
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***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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g.
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Section
4.1.3 (Security) is
hereby deleted in its entirety.
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h.
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The
Price Change formula for metallurgical silicon in Section 4.2.1 is hereby
amended as follows:
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Price
Change for metallurgical silicon = [(1.45 Metallurgical Silicon Ton) /
(Polysilicon Ton)] x [Price Change / Metallurgical Silicon Ton]
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i.
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Section
6.3 (Advance
Payment Set Off) is hereby deleted in its entirety and Section 6.4
(Taxes)
shall be renumbered as Section 6.3.
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j.
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Section
7.3 (Quality
Control Inspection) is hereby amended by deleting such Section in
its entirety and replacing it with the
following:
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7.3
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Quality
Meeting. In the event that SunPower provides written
evidence to the reasonable satisfaction of OCI that there is a quality
issue with respect to the Product, then the Parties agree to promptly hold
a technical meeting in a good faith effort to resolve the
issue.
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k.
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Section
10.1 (Term) is hereby
amended by deleting such Section in its entirety and replacing it with the
following:
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10.1
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Term. This
Agreement shall commence upon the Effective Date and shall remain in full
force until December 31, 2011, unless earlier terminated pursuant to
Section 10.2 below.
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l.
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Schedule
1 to the Supply Agreement is hereby amended as set forth in the new
Schedule 1 attached hereto.
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3.
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Agreed Quantity for
2008
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The
Agreed Quantity (as defined in the Supply Agreement) for the year 2008 shall be
approximately *** metric tons.
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4.
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Effective Date of
Second Amendment
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This
Second Amendment shall become effective upon its execution by the
Parties.
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5.
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Miscellaneous
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***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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a.
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Amendment
Only. This is an amendment only to the Supply Agreement
and not a new supply agreement. All of the remaining terms and
conditions of the Supply Agreement shall remain in full force and effect
unless specifically modified
herein.
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b.
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Severability.
If any term, condition or provision(s) of this Second Amendment is held to
be unenforceable for any reason, it shall be interpreted rather than
voided, in order to achieve the intent of the Parties to this Second
Amendment to the extent possible. In any event, all other
terms, conditions and provisions of this Second Amendment shall be deemed
valid and enforceable to the full
extent.
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c.
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Amendment. No
modification, alteration, addition or change in the terms hereof shall be
binding on the Parties unless it is reduced to writing in the English
language and signed by duly authorized representatives of each of the
Parties hereto.
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d.
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Assignment. Except
as specifically provided in this Second Amendment, neither of the Parties
shall assign, in whole or in part, its rights, duties or obligations under
this Second Amendment without the other Party’s prior written
consent.
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e.
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Waiver. The
waiver or failure of either of the Parties to exercise any right in any
respect provided for herein shall not be deemed a waiver of any further
right hereunder.
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f.
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Counterparts. This
Second Amendment may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the Parties
hereto.
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g.
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Entire
Agreement. This Second Amendment, including any and all appendices
or annexes attached hereto, constitutes the entire agreement and
understanding between the Parties and supersedes and cancels all previous
writings, understandings, agreements and commitments, either oral or
written, among the Parties on the subject of this Second
Amendment.
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h.
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Conflict with Supply
Agreement. If any term, condition or provision of this
Second Amendment is inconsistent or conflicts with any term, condition or
provision of the Supply Agreement, the term, condition or provision of
this Second Amendment shall govern to the extent of such inconsistency or
conflict.
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IN WITNESS THEREOF, the duly
authorized representatives of the Parties hereto have executed and delivered two
(2) copies of this Second Amendment as of the date first above written, with
each Party retaining a copy thereof.
MK MTN
| OCI Company Ltd. | SunPower Philippines Manufacturing, Ltd. | |||
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/s/Min ▇▇▇
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/s/
▇▇▇▇▇
▇▇▇▇▇
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Name:
Min ▇▇▇ ▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇
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Title:
Executive Vice President
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Title:
Chief Operating Officer
SunPower
Corporation
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Schedule
1
Specifications
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Species
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Maximum
Concentration
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Donor(Phosphorus)
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5ppba
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Acceptor(Boron)
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1ppba
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Carbon
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0.5ppma
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Bulk
Metals(Total)
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Maximum
Concentration
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Fe,
Cu, Ni, Cr, Zn, Na
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15ppbw
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Surface
Metals
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇
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▇▇▇▇▇▇
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▇▇
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▇▇▇▇▇
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▇▇
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▇▇▇▇▇
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▇▇
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▇▇▇▇▇▇
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▇▇
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4ppbw
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Al
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10ppbw
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Cu
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2ppbw
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K
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10ppbw
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Product
Size
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5 ~
150mm Max 100%
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Product
is packed in a virgin polyethylene (no additives) bag with a net weight of 5kg
+/-
0.5%. A
double bag system is used to be compatible with clean room
requirements