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Exhibit 4.56  


 
 

AMENDMENT TO CONFIRMATION    
    



	

DATE:	
 	

4TH September 2003
	

TO:	
 	

Durban Roodepoort Deep, Limited

(Incorporated in the Republic of South Africa)

Registration No. 1895/000926/06
	

ATTENTION:	
 	

Ian Louis Murray
	

FAX:	
 	

(011) 482 1022
	

FROM:	
 	

Investec Bank (Mauritius) Limited
	

SUBJECT:	
 	

American Call Option
	

REF No:	
 	

0010
	







        This Amendment to Confirmation Agreement ("Amendment"), dated as of September 4, 2003, is entered into by and between Durban Roodepoort Deep, Limited
("Durban") and Investec Bank (Mauritius) Limited ("Investec"). Unless otherwise stated, any capitalized term used but not defined herein shall have the meaning given to such term in
Regulation S ("Regulation S") of the U.S. Securities Act of 1933, as amended (the "Securities Act"). 


        WHEREAS, Durban and Investec have entered into a Confirmation, dated August 14, 2003 (the "Confirmation") whereby Durban grants to
Investec the option (the "Option") to purchase 18 million ordinary shares of Durban subject to the terms and conditions set forth therein; and 


        WHEREAS, Durban and Investec wish to enter into this Amendment in order to amend the Confirmation as set forth below. To the extent that
there are any inconsistencies between the original Confirmation and this Amendment to Confirmation, the contents of this document will prevail. 


        NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows: 


	1.
	Number of options:    27 million



	2.
	Multiple Exercise:    Applicable



	3.
	Expiration Date:    7th November 2003



	4.
	Investec Representations and Warranties. Investec represents and warrants to Durban as follows:



	a.
	Investec
is not a U.S. person and purchased the Option in an offshore transaction pursuant to Regulation S.



	b.
	No
purchase, resale or other transfer of the Option, or the ordinary shares issuable upon exercise of the Option (the "Ordinary Shares"), has been or will be made so as to transfer the
Option or the Ordinary Shares to a U.S. person, except as permitted below.



	c.
	All
subsequent offers and resales of the Ordinary Shares made before the expiration of the 40-day distribution compliance period (the "Distribution Compliance Period")
beginning on the date that the Option is exercised shall be made: (i) to Durban or any of its subsidiaries; (ii) outside of the United States to a non-U.S. person in an
offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S; (iii) pursuant to a registration statement which has been declared effective under the
Securities Act; or (iv) pursuant to an exemption from registration under the Securities Act. 








 




	5.
	Partial Exercise of the Option. In the event that the Option is exercised in two or more parts, the Distribution Compliance Period for
the Ordinary Shares issued in connection with such partial exercise will begin on each date of such partial exercise of the Option. Each tranche of Ordinary Shares issued upon such partial exercise of
the Option shall be subject to all of the terms and conditions contained in this Agreement.



	6.
	Exercise of the Option. Investec hereby acknowledges and agrees that:



	a.
	It
will not exercise the Option, in whole or in part, until it provides Durban with:



	(i)
	(A)    a
written certification that it is not a U.S. person and that the Option is not being exercised on behalf of a U.S. person; or (ii) a written opinion of
counsel, reasonably acceptable to Durban, to the effect that the Option and the Ordinary Shares have been registered under the Securities Act or are exempt from registration thereunder; and



	

	(B)    a
written certification that Investec is not exercising the Option within the United States and that the Ordinary Shares are not to be delivered within
the United States, except as otherwise permitted by Rule 903 of Regulation S, unless the Ordinary Shares are registered under the Securities Act or an exemption from such registration is
available.






	b.
	If
the Option is exercised in one or more parts, Investec will provide Durban with the items specified in sub-paragraph (a) above prior to each partial exercise.






	7.
	Legend.



	(a)
	Until
fully exercised in the case of the Option, or until the expiration of the applicable Distribution Compliance Period in the case of Ordinary Shares, any certificate representing
the Option or the Ordinary Shares, in whole or in part, shall bear the following legend: 







"The securities evidenced hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons except as set forth in the following sentence. By its acquisition hereof, the holder (1) represents that it is not
a U.S. person and is acquiring this security in an offshore transaction in compliance with Regulation S under the Securities Act, (2) agrees that it will not offer, sell, pledge or
otherwise transfer this security except (a) to Durban Roodepoort Deep, Limited or any subsidiary thereof, (b) outside of the United States to a non-U.S. person in an offshore
transaction in accordance with Rule 903 or Rule 904 of Regulation S, (c) pursuant to a registration statement which has been declared effective under the Securities Act or
(d) pursuant to an exemption from registration under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States, and (3) agrees
that it will deliver to each person to whom this security or an interest therein is transferred a notice substantially to the effect of this legend. As used herein, the terms "offshore transaction,
"United States" and "U.S. person" have the meanings given to them by Regulation S under the Securities Act."



	b.
	In
addition to the legend set forth in sub-paragraph (a) above, any certificate representing the Option, in whole or in part, shall also bear the following legend: 





"The securities to be issued upon the exercise of this Option have not been registered under the Securities Act and this Option may not be exercised by or on behalf of any U.S.
person unless registered under the Securities Act or unless an exemption from such registration is available."




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	c.
	Investec
understands that the Option and the Ordinary Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States
federal and state securities laws, that the Option and the Ordinary Shares have not been registered with any state or federal securities commissions and that Durban is relying upon the truth and
accuracy of the representations, warranties, acknowledgments and agreements of Investec set forth herein in order to determine the applicability of such exemptions.






	8.
	Transfers and Subsequent Purchasers. Durban and Investec agree that neither party may transfer the Option, in whole or in part, without
the prior written consent of the non-transferring party and that any transfer of the Option, in whole or in part, will be made in accordance with Regulation S. Investec agrees that,
in addition to the restrictions on resale contained herein and before the expiration of the applicable Distribution Compliance Period, it may not transfer any portion of the Option or the Ordinary
Shares to any party unless such party enters into an agreement with Durban containing representations, warranties and restrictions on resale substantially similar to those contained herein.



	9.
	Miscellaneous.



	a.
	This
Amendment may be executed in counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and
the same instrument.



	b.
	The
Confirmation, as amended hereby, remains in full force and effect, and any reference to the Confirmation shall constitute a reference to the Confirmation as amended hereby. 






        IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date set forth above. 



	

 	
 	

DURBAN ROODEPOORT DEEP, LIMITED
	

 	
 	

 	
 	

 
	

 	
 	

By:	
 	

/s/  IAN MURRAY      
 Name:    Ian Murray

Title:    Finance Director
	



	
 	

 	
 	

 
	

 	
 	

INVESTEC BANK (MAURITIUS) LIMITED
	

 	
 	

By:	
 	

/s/  MARK CURRIE      
 Name:    Mark Currie

Title:    Head of Financial Products (South Africa)
	



	
 	

 	
 	

 
	

 	
 	

By:	
 	

 Name:  

Title:  






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AMENDMENT TO CONFIRMATION