Excess Benefit Plan (10-38)

EXHIBIT 10-38 NIAGARA MOHAWK EXCESS BENEFIT PLAN Amended and Restated as of January 1, 2000 NIAGARA MOHAWK EXCESS BENEFIT PLAN PREAMBLE

The principal objective of this Excess Benefit Plan (previously titled the Niagara Mohawk Power Corporation Excess Benefit Plan) is to ensure the payment of a competitive level of retirement income in order to attract, retain and motivate selected executives. Eligibility for participation in the Plan shall be limited to officer-employees and to such other executive employees of the Company who are specifically designated by the Committee to participate herein. This Plan was adopted effective January 1, 1991, and will be effective as to each Participant in the first year in which the Participant does not receive a full allocation of Company contributions under the Savings Plan as a result of the application of Code Section 401(a)(17) and/or Code Section 415, and each year thereafter.

The Plan has been amended a number of times since January 1, 1991. This document constitutes an amendment and restatement of the Plan effective as of January 1, 2000. SECTION I

Definitions

1.1 " Account" means the separate bookkeeping account established by the Company to record the Excess Plan
Benefit of each Participant. 1.2 " Code" means the Internal Revenue Code of 1986, as amended.

1.3" Committee" means the Compensation and Succession Committee of the Board of Directors of Niagara Mohawk Holdings, Inc. which has been given authority to administer this Plan. In no event shall a member of the Committee be entitled to vote or otherwise act with respect to Plan benefits for such member.
1.4" Company" Niagara Mohawk Holdings, Inc., Niagara Mohawk Power Corporation, any subsidiary of Niagara Mohawk Holdings, Inc. that participates in the Savings Plan, and any other separate employer that participates in this Plan with the consent of Niagara Mohawk Holdings, Inc. (each of these employers, as well as any other separate employer that participates in this Plan with the consent of Niagara Mohawk Holdings, Inc., shall hereinafter be referred to as a " Participating Employer" ). Notwithstanding the foregoing, the term " Company" means Niagara Mohawk Holdings, Inc. for purposes of the administration of the Plan. The term " Company" is being used solely for convenience to make the Plan easier to read, and does not alter the fact that a Participant is employed by the separate Participating Employer from which the Participant regularly receives his paycheck. With respect to any Participant, the term " Company" means such separate Participating Employer.
1.5 " Company Contributions" has the definition given to such term under the Savings Plan.

1.6" Excess Plan Benefit" means the sum of the annual amounts of Company Contributions which the Participant did not have allocated to his account under the Savings Plan as a result of (i) the application of Code Section 401(a)(17) and /or Code Section 415 to the Savings Plan, and (ii) the Participant' s deferral of compensation pursuant to the Niagara Mohawk Deferred Compensation Plan, together with earnings (or losses) on amounts described in (i) and (ii), determined as if such amounts had been invested in the common stock of the Company from the date on which the Participant would have received an allocation of Company Contributions under the Savings Plan, but for the application of Code Section 401(a)(17) and /or Co ...