In Majkowski v. American Imaging Management Services, LLC, 2006 WL 3627111 (Del. Ch. Dec. 6, 2006), read opinion here , the Delaware Chancery Court rejected a claim for advancement based on a clause that merely promised to "indemnify and hold harmless". In a thorough manner that time will not allow me to explore here, the court also addressed, in great detail, substantive arbitrability issues (after noting the argument that some arbitrability issues were waived by not being raised in the briefs.)
The court explained at length that a clause merely providing to "indemnify and hold harmless" does not entitle one to advancement. The opinion makes clear that indemnification and advancement are separate and distinct rights. Though the court was sympathetic to the plaintiff’s plight, basic contract interpretation principles would not allow the blurring of the distinction between the two concepts. Many other cases on this blog have summarized the importance that the Delaware courts give to advancement rights (note: readers can insert word in search function in the margin), but that was not enough to justify a result not supported by the facts or the law. Among other things, this case is an example of the limitations that even a court of equity has to fix some things that are "just not fair".