Exhibit 10.1


 


[●], 2021


 


Modiv Acquisition Corp.


120 Newport Center Drive


Newport Beach, CA 92660


 


Chardan Capital Markets, LLC


17 State Street, 21st Floor


New York, NY 10004


 


Re:Initial Public
Offering


 


Gentlemen:


 


This letter agreement
(the “Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting
Agreement”) entered into by and between Modiv Acquisition Corp., a Delaware corporation (the “Company”),
and Chardan Capital Markets, LLC, as representative (the “Representative”) of the Underwriters named
in Schedule A thereto (the “Underwriters”), relating to an underwritten initial public offering (the
“IPO”) of up to 11,500,000 of the Company’s units (inclusive of up to 1,500,000 units that may
be purchased to cover the Underwriters’ option to purchase additional units, if any) (the “Units”),
each comprised of one share of common stock of the Company, par value $0.0001 per share (the “Common Stock”),
and one warrant, with each warrant being exercisable to purchase one-half (1⁄2) share of Common Stock at a price of $11.50
per full share (“Warrant”). Certain capitalized terms used herein are defined in paragraph 14 hereof.


 


In order to induce
the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the
benefit that such IPO will confer upon the undersigned as a stockholder of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:


 


1.            It
is acknowledged and agreed that the Company shall not enter into a definitive agreement regarding a proposed Business Combination
without the prior consent of Modiv Venture Fund, LLC, a Delaware limited liability company (the “Sponsor”).
If the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of Common
Stock beneficially owned by him, her or it, whether acquired before, in or after the IPO, in favor of such Business Combination.


 


2.           (a)       In
the event that the Company fails to consummate a Business Combination within 24 months from the closing of the Company’s
IPO, the undersigned shall take all reasonable steps to (i) cause the Company to cease all operations except for the purpose of
winding up, (ii) cause the Company, as promptly as reasonably possible but not more than ten business days thereafter, to redeem
100% of the outstanding IPO Shares and (iii) as promptly as reasonably practicable following such redemption, subject to the approval
of the Company’s remaining stockholders and board of directors, cause the Company to dissolve and liquidate, subject (in
the case of (ii) and (iii) above) to the Company’s obligations under Delaware law to provide for claims of creditors and
the requirements of other applicable law.


 


(b)       The
undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Fund and
any remaining net assets of the Company as a result of such liquidation with respect to any Insider Shares or Private Warrants
he, she or it owns (“Claim”) and hereby waives any Claim the undersigned may have in the future as a
result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Fund for
any reason whatsoever,


 




    	 		 



     


    




 


other than, in each case, with respect
to any IPO Shares that the undersigned may receive distributions from the Trust Fund upon the Trust Fund being liquidated and distributed
to the holders of IPO Shares pursuant to Section 2(a) above. The undersigned acknowledges and agrees that there will be no distribution
from the Trust Fund with respect to any Common Stock underlying the Private Warrants, all rights of which will terminate on the
Company’s liquidation.


 


[(c)     In the event
of the liquidation of the Trust Fund, the undersigned agrees to indemnify and hold harmless the Company against any and all loss,
liability, claims, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever)
which the Company may become subject as a result of any claim by any vendor or other person who is owed money by the Company for
services rendered or products sold or contracted for, but only to the extent necessary to ensure that such loss, liability, claim,
damage or expense does not reduce the amount of funds in the Trust Fund to below the lesser of (i) $10.00 per IPO Share and (ii)
the actual amount per IPO Share held in the Trust Fund as of the date of the liquidation of the Trust Fund, if less than $10.00
per share due to reductions in the value of the trust assets, less taxes payable; provided, that such indemnity shall not
apply (i) if such vendor or other person has executed a valid and enforceable agreement waiving any claims against the Trust Fund
and (ii) to any claims under the Company’s indemnity of the underwriters of the IPO against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the “Securities Act”).]1


 


[(d)     In the event
that the Company does not consummate a Business Combination and must liquidate and its remaining net assets are insufficient to
complete such liquidation, the undersigned agrees to advance such funds necessary to complete such liquidation and agrees not to
seek repayment for expenses related to such advance of funds.]2


 


3.            The
undersigned will place into escrow all of his, her or its Insider Shares pursuant to the terms of a Stock Escrow Agreement which
the Company will enter into with the undersigned and an escrow agent acceptable to the Company. The Insider Shares will be placed
into an escrow account maintained by the escrow agent. 50% percent of the Insider Shares will not be transferred, assigned, sold
or released from escrow until the earlier of (i) 6 months after the date of the consummation of the Company’s initial Business
Combination or (ii) the date on which the closing price of the shares of the Company’s Common Stock equals or exceeds $12.50
per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within
any 30-trading day period commencing after the closing of the Company’s initial Business Combination, and the remaining 50%
of the Insider Shares will not be transferred, assigned, sold or released from escrow until 6 months after the date of the closing
of the Company’s initial Business Combination, or earlier, in either case, if, subsequent to the Company’s initial
Business Combination, the Company consummates a subsequent liquidation, merger, stock exchange or other similar transaction which
results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities
or other property; provided that the foregoing restrictions shall not apply to transfers (i) to any persons or entities
(including their affiliates and stockholders) participating in the private placement of the Private Warrants, and officers, directors,
stockholders, employees and members of the Sponsor and its affiliates, (ii) amongst the Company’s pre-IPO stockholders (including,
to the extent the Company’s pre-IPO stockholders are entities, to such entity’s members, partners, stockholders or
other equity holders) or to the Company’s officers, directors and employees, (iii) if the undersigned (or Permitted Transferee
(as defined below)) is an entity, as a distribution to its partners, stockholders, or members upon its liquidation, (iv) by bona
fide gift to a member of the undersigned’s (or Permitted Transferee’s) immediate family or to a trust, the beneficiary
of which is the undersigned (or


  


 






		1	Only for Modiv Venture Fund, LLC



		2	Only for Modiv Venture Fund, LLC



 




    	 	2	 



     


    







 


Permitted Transferee) or a member of the
undersigned’s (or Permitted Transferee’s) immediate family, for estate planning purposes, (v) by virtue of the laws
of descent and distribution upon death, (vi) pursuant to a qualified domestic relations order, (vii) by certain pledges to secure
obligations incurred in connection with purchases of the Company’s securities, (viii) by private sales at prices no greater
than the price at which the Insider Shares were originally purchased or (ix) to the Company for the cancellation of up to 375,000
Insider Shares subject to forfeiture to the extent that the Underwriters’ over-allotment option is not exercised in full
or in part in connection with the consummation of a Business Combination, in each case (except for clause ix or with the consent
of the Company) where these permitted transferees (“Permitted Transferees”) agree in writing to the terms
of the transfer restrictions.


 


[4.          The undersigned
agrees that until the Company consummates a Business Combination, the undersigned’s Private Warrants will be subject to the
transfer restrictions described in the Subscription Agreement relating to the purchase and sale of the undersigned’s Private
Warrants.]3


 


5.            In
order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present
to the Company for its consideration, prior to presentation to any other person or entity, any suitable opportunity to acquire
a target business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company,
subject to any pre-existing fiduciary and contractual obligations the undersigned might have.


 


6.            The
undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated
with any Insider of the Company or their affiliates, including any company that is a portfolio company of, or otherwise affiliated
with, or has received financial investment from, an entity with which any Insider or their affiliates is affiliated, (i) such transaction
must be approved by a majority of the Company’s disinterested and independent directors, (ii) the Company must obtain an
opinion from an independent investment banking or accounting firm as to the fair market value of the target business and that such
Business Combination is fair to the Company’s unaffiliated stockholders from a financial point of view and (iii) such transaction
must be approved by the Company’s audit committee.


 


7.            Neither
the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive
or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned
or any affiliate of the undersigned originates a Business Combination.


 


8.            [The
undersigned agrees to be an officer and/or director of the Company until the earlier of the consummation by the Company of a Business
Combination or the liquidation of the Company. The undersigned’s biographical information previously furnished to the Company
and the Representative and included in the Registration Statement is true and accurate in all material respects, does not omit
any material information with respect to the undersigned’s biography and contains all of the information required to be disclosed
pursuant to Item 401 of Regulation S-K, promulgated under the Securities Act.]4
The undersigned’s FINRA Questionnaire and Director and Officer Questionnaire previously furnished to the Company and the
Representative is true and accurate in all material respects. For any of the following events that occurred during the past ten
years, the undersigned represents and warrants that, except as disclosed in the undersigned’s Director and Officer Questionnaire:


 


		(a)	he/she/it has never had a petition under the federal bankruptcy laws or any state insolvency law
filed by or against, or a receiver, fiscal agent or similar officer been



 





 






		3	Only for Modiv Venture Fund, LLC



		4	Only for directors and officers



  




    	 	3	 



     


    




 


appointed by a court for the
business or property of (i) him/her/it or (ii) any partnership in which he/she/it was a general partner at or within two years
before the time of filing; or (iii) any corporation or business association of which he/she/it was an executive officer at or within
two years before the time of such filing;


 


		(b)	he/she/it has never been convicted of fraud in a civil or criminal proceeding;



 


		(c)	he/she/it/ has never been convicted in a criminal proceeding or named the subject of a pending
criminal proceeding (excluding traffic violations and minor offenses);



 


		(d)	he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him/her/it
from (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission (“CFTC”)
or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as
an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company,
or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type of
business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or commodity or in
connection with any violation of federal or state securities or federal commodities laws;



 


		(e)	he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days his/her/its
right to engage in any activity described in 8(d)(i) above, or to be associated with persons engaged in any such activity;



 


		(f)	he/she/it has never been found by a court of competent jurisdiction in a civil action or by the
SEC to have violated any federal or state securities law, where the judgment in such civil action or finding by the SEC has not
been subsequently reversed, suspended or vacated;



 


		(g)	he/she/it has never been found by a court of competent jurisdiction in a civil action or by the
CFTC to have violated any federal commodities law, and the judgment in such civil action or finding by the CFTC has not been subsequently
reversed, suspended or vacated;



 


		(h)	he/she/it has never been the subject of, or a party to, any federal or state judicial or administrative
order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any
federal or state securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance
companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money
penalty or temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or regulation prohibiting
mail or wire fraud or fraud in connection with any business entity;



 




    	 	4	 



     


    







 


		(i)	he/she/it has never been the subject of, or party to, any sanction or order, not subsequently reversed,
suspended or vacated, or any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act), any registered
entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization
that has disciplinary authority over its members or persons associated with a member;



 


		(j)	he/she/it has never been convicted of any felony or misdemeanor: (i) in connection with the purchase
or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the
business of an underwriter, broker, dealer, municipal securities dealer, investment advisor or paid solicitor of purchasers of
securities;



 


		(k)	he/she/it was never subject to a final order of a state securities commission (or an agency of
officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit
unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking
agency; the CFTC; or the National Credit Union Administration that is based on a violation of any law or regulation that prohibits
fraudulent, manipulative, or deceptive conduct;



 


		(l)	he/she/it has never been subject to any order, judgment or decree of any court of competent jurisdiction,
that, at the time of such sale, restrained or enjoined him/her/it from engaging or continuing to engage in any conduct or practice:
(i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii)
arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or
paid solicitor of purchasers of securities;



 


		(m)	he/she/it has never been subject to any order of the SEC that orders him/her/it to cease and desist
from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the federal securities laws, including,
but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Section
206(1) of the Advisers Act or any other rule or regulation thereunder; or (ii) Section 5 of the Securities Act;



 


		(n)	he/she/it has never been named as an underwriter in any registration statement or Regulation A
offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A
exemption, or is, currently, the subject of an investigation or proceeding to determine whether a stop order or suspension order
should be issued;



 


		(o)	he/she/it has never been subject to a United States Postal Service false representation order,
or is currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United
States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations;



 


		(p)	he/she/it is not subject to a final order of a state securities commission (or an agency of officer
of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions;
a state



 




    	 	5	 



     


    




 


insurance commission (or an agency
or officer of a state performing like functions); an appropriate federal banking agency; the CFTC; or the National Credit Union
Administration that bars the undersigned from: (i) association with an entity regulated by such commission, authority, agency or
officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit
union activities;


 


		(q)	he/she/it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of
the Securities Exchange Act of 1934 (the “Exchange Act”) or section 203(e) or 203(f) of the Investment Advisers Act
of 1940 (the “Advisers Act”) that: (i) suspends or revokes the undersigned’s registration as a broker, dealer,
municipal securities dealer or investment adviser; (ii) places limitations on the activities, functions or operations of, or imposes
civil money penalties on, such person; or (iii) bars the undersigned from being associated with any entity or from participating
in the offering of any penny stock; and



 


		(r)	he/she/it has never been suspended or expelled from membership in, or suspended or barred from
association with a member of, a securities self-regulatory organization (e.g., a registered national securities exchange or a registered
national or affiliated securities association) for any act or omission to act constituting conduct inconsistent with just and equitable
principles of trade.



 


10.          The
undersigned has full right and power, without violating any agreement by which he, she or it is bound, to enter into this Agreement
[and to serve as an officer and/or director of the Company, as applicable, and consents to being named in the registration statement
on Form S-1 and prospectus filed by the Company with the U.S. Securities and Exchange Commission, road show and any other materials
as an officer and/or director of the Company, as applicable].5


 


11.          The
undersigned hereby waives his, her or its right to exercise redemption rights with respect to any shares of Common Stock owned
or to be owned by the undersigned, directly or indirectly, whether purchased by the undersigned prior to the IPO, in the IPO or
in the aftermarket, and agrees that he, she or it will not seek conversion with respect to or otherwise sell, such shares, in each
case, in connection with any vote to approve a Business Combination with respect thereto, a vote to amend the provisions of the
Company’s Amended and Restated Certificate of Incorporation, or a tender offer by the Company prior to a Business Combination.


 


12.          The
undersigned hereby agrees to (i) not propose, or vote in favor of, prior to and unrelated to an initial Business Combination, an
amendment to the Company’s Amended and Restated Certificate of Incorporation that would affect the substance or timing of
the Company’s redemption obligation to redeem all IPO Shares if the Company cannot complete an initial Business Combination
within 24 months of the closing of the IPO, unless the Company provides holders of IPO Shares an opportunity to redeem their IPO
Shares in conjunction with any such amendment, and (ii) not redeem any shares, including Insider Shares, in connection with the
right to receive cash from the Trust Fund in connection with a stockholder vote to approve the Company’s proposed initial
Business Combination or sell any shares to the Company in any tender offer in connection with the Company’s proposed initial
Business Combination.


 


13.          In
connection with Section 5-1401 of the General Obligations Law of the State of New York, this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result
in the application of the substantive


 





 









		5	Only for directors and officers.





 




    	 	6	 



     


    







 


law of another jurisdiction. The parties
hereto agree that any action, proceeding or claim arising out of or relating in any way to this Agreement shall be resolved through
final and binding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”).
The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New
York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes
Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party
from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s
legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators.


 


14.          As
used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, stock
purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii)
“Insiders” shall mean all officers, directors and stockholders of the Company immediately prior to the
IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the Company acquired
by an Insider prior to the IPO; (iv) “IPO Shares” shall mean the shares of Common Stock issued in the
Company’s IPO; (v) “Private Warrants” shall mean the warrants purchased in the private placement
taking place simultaneously with the consummation of the Company’s IPO; (vi) “Registration Statement”
means the registration statement on Form S-1 filed by the Company with respect to the IPO; and (vii) “Trust Fund”
shall mean the trust fund into which a portion of the net proceeds of the Company’s IPO will be deposited.


 


15.          Any
notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing
and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery
or by e-mail transmission. The parties hereto consent to the delivery of notices or other communications by electronic transmission
at the e-mail address set forth below the respective party’s name in this Section 15. To the extent that any notice given
by means of electronic transmission is returned or undeliverable for any reason, the foregoing consent shall be deemed to have
been revoked until a new or corrected e-mail address has been provided, and such attempted electronic notice shall be ineffective
and deemed to not have been given. Each party agrees to promptly notify the other parties of any change in its e-mail address,
and that failure to do so shall not affect the foregoing. The parties may change the persons and addresses to which the notices
or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.


 


If to the Representative:


Chardan Capital Markets, LLC


17 State Street, 21st Floor


New York, NY 10004


Attn: George Kaufman


Email: gkaufman@chardancm.com


 


with a copy (which copy shall not constitute
notice) to:


Reed Smith LLP


599 Lexington Avenue


New York, NY 10022


Attn: Ari Edelman, Esq.


Email: AEdelman@reedsmith.com


 


If to the Company:


Modiv Acquisition Corp.


120 Newport Center Drive


Newport Beach, CA 92660


 




    	 	7	 



     


    







 


Attn: Raymond J. Pacini


Email: rpacini@modiv.com


 


with a copy (which copy shall not constitute
notice) to:


Loeb & Loeb LLP


345 Park Avenue


New York, NY 10154


Attn: Mitchell S. Nussbaum, Esq.
and Tahra Wright, Esq.


Email: mnussbaum@loeb.com; twright@loeb.com


 


16.          No
party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written
consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not
operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the parties hereto
and any successors and assigns thereof.


 


17.          The
undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and
warranties set forth herein in proceeding with the IPO. Nothing contained herein shall be deemed to render the Underwriters a representative
of, or a fiduciary with respect to, the Company, its stockholders or any creditor or vendor of the company with respect to the
subject matter hereof.


 


[Signature page to follow]


 




    	 	8	 



     


    

  


	 	 
	 	Print Name of Insider
	 	 
	 	 
	 	Signature


 


[Signature page to Insider Letter]


 




    	 		 



     


    

 


 


	 	Acknowledged and Agreed:
	 	 
	 	MODIV ACQUISITION CORP.
	 	 
	 	By:	 
	 	Name:	Raymond J. Pacini
	 	Title:	Chief Financial Officer


 


[Signature page to Insider Letter]